Section 40.1012 - Application of Activity and U se Limitations(1) The purpose of an Activity and Use Limitation is to narrow the scope of exposure assumptions used to characterize risks to human health from a release pursuant to 310 CMR 40.0900, by specifying activities and uses that are prohibited and allowed at the disposal site in the future. 310 CMR 40.1012 establishes rules for determining when an Activity and Use Limitation must be used, when one cannot be used, and when one may be a factor to be considered in appropriately characterizing soil and groundwater at a disposal site, pursuant to 310 CMR 40.0923(3).(2) Except as provided in 310 CMR 40.1012(3) and 310 CMR 40.1013, Activity and Use Limitations shall be required: (a) at all disposal sites or portions of disposal sites for which a Permanent Solution and the risk characterization pursuant to 310 CMR 40.0900 used to support the Permanent Solution are based upon the restriction or limitation of Site Activities and Uses to achieve or maintain a level of No Significant Risk including: 1. any disposal site or portion of a disposal site for which a Permanent Solution is based on MCP Method 1 or 2 Soil Standards and the Exposure Point Concentrations of oil and/or hazardous material exceed the S-1 standards but meet applicable S-2 or S-3 standards;2. any disposal site or portion of a disposal site where a Method 3 Risk Characterization performed pursuant to 310 CMR 40.0990 relies on reduced exposure potential due to the assumption of limited site use; and3. any disposal site or portion of a disposal site at which the oil and/or hazardous material in soil located at a depth greater than 15 feet from the ground surface exceeds an applicable Method 3 Ceiling Limit in Soil listed at 310 CMR 40.0996(7) or determined at 310 CMR 40.0996(8); and4. any disposal site or portion of a disposal site where visible coal tar waste deposits are located at a depth greater than 15 feet from the ground surface pursuant to 310 CMR 40.0997(3).(b) at all disposal sites for which a Permanent Solution relies upon an Exposure Pathway Mitigation Measure to prevent exposure to levels of oil and/or hazardous material that would otherwise pose a significant risk of harm to health, safety, public welfare or the environment, including: 1. one or more Passive Exposure Pathway Mitigation Measures; or2. one or more Active Exposure Pathway Mitigation Measures implemented pursuant to the requirements at 310 CMR 40.1025;(c) at all disposal sites where an existing private water supply well(s) is removed from service as a source of drinking water and maintained for uses other than as a private water supply in accordance with the provisions of 310 CMR 40.0932(5)(d);(d) at all disposal sites for which a Permanent Solution is achieved and the thickness of visible NAPL in an excavation, boring or monitoring well remaining at a disposal site is or is anticipated to be greater than 1/2 inch; and(e) at all disposal sites at Non-licensed Sites pursuant to 310 CMR 40.0115 where a Permanent Solution or Temporary Solution is achieved and Radioactive Material emitting Radiation above background level is present.(3) Activity and Use Limitations shall not be required, but may be used to provide notice of the existence of residual contamination to future holders of an interest(s) in property that is located within:(a) disposal sites or portions of disposal sites where the concentrations of oil and/or hazardous material have been reduced to background or where the requirements described in 310 CMR 40.0923(3)(b) have been met;(b) disposal sites or portions of disposal sites at which residual contamination at levels at or below the applicable Method 3 Ceiling Limits for Soil listed or determined in 310 CMR 40.0996 is located at a depth greater than 15 feet from the ground surface;(c) any disposal site or portion of a disposal site for which the Permanent Solution is based upon one or more of the limitations, assumptions or conditions on Site Activities and Uses specified at 310 CMR 40.1013;(d) disposal sites or portions of a disposal site for which potential risks are characterized using Method 1 (310 CMR 40.0970) if the levels of oil and/or hazardous material in soil are at or below the applicable Method 1 category S-1 soil standards listed in 310 CMR 40.0975(6);(e) at disposal sites or portions of a disposal site for which potential risks are characterized using Method 2 (310 CMR 40.0980) if the levels of oil and/or hazardous material are at or below the applicable category S-1 soil standards identified in 310 CMR 40.0984 and 40.0985;(f) disposal sites or portions of a disposal site for which potential risks are characterized using Method 3 (310 CMR 40.0990) if the levels of oil and/or hazardous material pose No Significant Risk pursuant to 310 CMR 40.0990, including comparison to any applicable or suitably analogous standards, and no limitations on-site use were assumed or implied in the Risk Characterization;(g) except where an Activity and Use Limitation is required pursuant to 310 CMR 40.1012(2)(e), any disposal site or portion of a disposal site where all substantial hazards have been eliminated and where all applicable requirements for a Temporary Solution have been met pursuant to 310 CMR 40.1050;(h) any disposal site or portion of a disposal site where all substantial hazards have been eliminated and where all applicable requirements for Remedy Operation Status have been met pursuant to 310 CMR 40.0893; and(i) any other disposal site or portion of a disposal site where an Activity and U se Limitation is not expressly prohibited by 310 CMR 40.1012.(4) Activity and Use Limitations shall not be used: (a) to change the groundwater category of groundwater categorized as GW-1 or GW-2 pursuant to 310 CMR 40.0932; or(b) to justify a conclusion that a condition of No Significant Risk exists or has been achieved at sites characterized using Method 1 or Method 2 if an identified Exposure Point Concentration exceeds an applicable Method 1 or Method 2 standard.(5) Activity and Use Limitations shall: (a) provide notice to holders of any interest(s) in a property or a portion thereof (including without limitation, owners, lessees, tenants, mortgagees, and holders of easement rights) of the existence and location of oil and/or hazardous material at such property and the Activity and Use Limitations that have been implemented in response thereto; and(b) establish a duty to evaluate risks associated with proposed changes in Site Activities and Uses on the subject property that could increase the risk of harm to health, safety, public welfare or the environment pursuant to the requirements of 310 CMR 40.1080, to perform additional response actions prior to any such change in Site Activities and Uses, as required by 310 CMR 40.0000, and to notify the Department of any reportable condition created by a change in Site Activity and Use.(6) Any Activity and Use Limitations applied at a disposal site pursuant to 310 CMR 40.0000 shall be instituted and maintained in accordance with 310 CMR 40.1070 through 310 CMR 40.1099.(7) The implementation of an Activity and Use Limitation that supports a Permanent or Temporary Solution shall be documented in the Permanent Solution Statement as required pursuant to 310 CMR 40.1056(1)(e) and (2)(h) or in the Temporary Solution Statement as required pursuant to 310 CMR 40.1057(1)(e) and (2)(h).(8) A Permanent Solution that relies on the implementation of an Activity and Use Limitation is a Permanent Solution with Conditions pursuant to 310 CMR 40.1041(2).Amended by Mass Register Issue 1407, eff. 12/27/2019.Amended by Mass Register Issue 1503, eff. 3/1/2024.Amended by Mass Register Issue S1516, eff. 3/1/2024.